Introduction
Access to knowledge – who would not agree that this is a subject matter that is of great social and democratic importance, a matter that can rightly be described as a human need, in developed as well as developing countries. Not only is access to knowledge globally acknowledged as a desirable value, worthy of being promoted and protected; there is also a widely shared feeling that in the so-called “information economy” the ongoing expansion of intellectual property law, as well as the way exclusive rights in contents are exercised, actually threatens access to knowledge in many ways. Thus it is surprising to realize that access to knowledge is an issue that has been rather neglected when drafting recent pieces of intellectual property (IP) legislation, such as the World Intellectual Property Organization (WIPO) Copyright and Performers and Phonograms Treaty, the Digital Millennium Copyright Act, the European Copyright Directive, to name but some.

The call for access to knowledge gains an additional dimension from the perspective of developing countries. As Peter Drahos from the Australian National University explains: "For developing countries the coming century of knowledge-based growth raises two basic development priorities. The first is that these countries must give more urgent attention to encouraging investment in human capital and this essentially translates into investment in health and education. The second basic priority is to think creatively about models of governance for the production of knowledge that maximize the participation of developing countries in the processes of innovation, that maximizes the spillover benefits of knowledge and that minimize the social cost of accumulating knowledge". In other words, the Information Society is not a phenomenon that ends at the borders of developed countries. Access to knowledge is a matter of great interest for developing countries as well, and a means to protect and defend their interests in the global economy.

Drafting a treaty on access to knowledge
In May 2005, experts from the US, Serbia, South Africa, UK, the Netherlands, Spain, Greece, Italy, Germany, Malaysia, France, India, Canada, Korea, Brasil, Chile, among others, met in London for a second round of drafting a proposal for a Treaty on Access to Knowledge (A2K 2005). In a two-day marathon a consolidated version of the draft Treaty was presented for discussion to representatives from non-governmental organizations and consumer organizations, academics, governments, international organizations, academics, foundations, standardization bodies and industry players.

The first meeting took place in Geneva earlier this year, when a smaller group of experts brainstormed and submitted first proposals on what the content of such a Treaty could be. The original idea for a Treaty on Access to Knowledge has its origin in a proposal for a development agenda that was made by Argentina and Brazil at a WIPO General Assembly in 2004 (WIPO 2004). Civil society representatives, among them the Transatlantic Consumer Dialogue (TACD; cf.sources) and the Consumer Project on Technology (CPTech; cf sources) recognized the potential and rightfulness of such a proposal and engaged in developing it further by starting a global initiative – the A2K initiative.

Scope and content
The version of a draft Treaty that was presented in London begins with a Preamble that describes the motives and guiding principles for this initiative. The Preamble expresses concerns about an arbitrary expansion of IP rights and the effect this can have for individual participation in creation, technological and economic progress, innovation, development, research and education. The goal of the Treaty is to create opportunities for the accumulation, distribution and sharing of knowledge, as well as benefiting from knowledge on a global level. The initiative is aimed at both developing and the developed countries; it is aware of possible disparities and different needs of both, developing and developed countries.

The actual draft provisions consist of a bundle of ideas on how to promote and protect access. Most of the suggestions made have already been subject to extensive research, and are the result of practical experience or are inspired by already existing national or international legal solutions. They cover a comprehensive agenda of 12 different subject matters, all of which have in common that they address ways of how to make knowledge accessible and how to realize the economic, academic and social benefits of access to knowledge. The draft includes provisions on the nature and scope of obligations in this draft treaty, its relationship to other international and regional agreements, provisions on governance and enforcement. It has provisions regarding limitations and exceptions to copyright and related rights, on collecting societies and access to publicly funded research. Other sections deal with patents, the promotion of open standards and the relationship between intellectual property and competition law. A selection of the suggested provisions that are most relevant for the INDICARE project will be discussed more closely in the following. These are the proposed provisions concerning the exceptions and limitations to copyright law and DRMs. In a last section, an overview of the next steps of the initiative is given.

Exceptions and limitations to copyright law
One major section of the draft Treaty suggests provisions regarding limitations and exceptions to copyrights and related rights, and here more specifically exceptions and limitations to exclusive economic exploitation rights (not: moral rights). The principal idea behind this section is the need to preserve and promote a number of uses of creative works that should not be inhibited by exclusive intellectual property rights. This can be the use of works for education, science or preservation. This can be the use by groups with special needs and interests, such as persons with disabilities, but also distant education institutions, the media or developing countries. This can be the use of works by intermediaries for the purpose of making the works accessible to third parties; examples are search engines and Internet Service Providers (ISPs).

One issue that generated a good deal of critical discussion in this context was the relationship of the suggested exceptions and limitations in the draft treaty and provisions in other, existing treaties. This is most certainly a point that will deserve further attention during future meetings. Some of the proposed exceptions already exist in this or a similar form in other legal texts, such as in the TRIPs agreement or the European Copyright Directive. Others are new, such as an exception on search engines, which will be discussed more in depth in the following.

Exceptions for knowledge-intermediaries
In a vast and difficult-to-overview information environment, seekers of access to knowledge rely increasingly on the services of intermediaries that select, bundle, guide and offer access to contents. Such knowledge-intermediaries can be search engines, portals, libraries, archives or schools, to name but some. Their activity – providing access to knowledge – must be reconciled with the interests of holders of intellectual property rights to control the distribution of such content. Occasionally, the interests conflict. One example are search engines, and the search-engine exception in the draft Treaty is a response to an ongoing discussion whether search engines, such as google.com or yahoo.com, conflict with copyright law by deeplinking and/or caching. If this was the case, holders of intellectual property rights could possibly abuse such rights to impede the function of search engines (cf. BGH 2003). The search-engine exception in the draft A2K Treaty seeks to avoid the use of intellectual property rights to impede the work of search engines. In the version from May 2005, it reads: "The use of works in connection with Internet search engines, so long as the owners of works do not make reasonably effective measures to prevent access by Internet search engines, and the Internet search engine service provides convenient and effective means to remove works from databases upon request of the right owner" (A2K 2005, article 3-1 (ix)). Additional exceptions are designed to benefit institutions that make knowledge accessible, such as education and research institutions, distant education universities, archives and libraries.

The exceptions in favour of knowledge-intermediaries such as search engines, libraries, archives and academic institution acknowledge that one important precondition for access to knowledge is the existence of institutions that make knowledge accessible. Consequently, one way to stimulate access to knowledge is to support the work of institutions that generate, aggregate and disseminate knowledge. The experts at the London meeting remarked rightly that the work of such institutions should not stop at national borders. It was demonstrated that there can be valid, also economic, arguments to open for examples archives in one country for citizens in other countries. Share-as-share-likewise models can be the basis for sustainable and attractive business models and, at the same time, ensure that citizens from different countries have access to knowledge hosted in other countries.

In a similar direction – making knowledge accessible – are provisions in the draft Treaty that seek to expand and enhance the knowledge commons. Proposals made include the compulsory licensing of copyrighted works in developing countries, the making available publicly of works resulting from government-funded research, access to archives of public broadcasters and government information as well as the idea of so-called "Knowledge Commons Databases". The proposed Article on Knowledge Commons Databases stipulates that persons, organizations or communities that seek to establish open databases that address an important public interest and are freely available to all should be exempted for a limited period of time from the application of exclusive rights.

Exceptions for people with special needs
Accessibility is also at the heart of a set of exceptions in favour of visually impaired or hearing impaired persons or persons with other disabilities. A representative of the World Blind Union explained the special situation of these groups. Two major issues in this context are accessibility and equity. People with visual, hearing or other impediments should be able to read same material as everybody else at the same time. This means in most cases that the content has to be adapted beforehand. Where the exercise of economic rights in contents inhibits the making larger of, reformatting and offering of contents in a format that is compatible with special player devices, this goes clearly at the expense of people with disabilities. To improve this situation, exceptions are needed that allow the formatting of works and also the importing and exporting of works that have been already formatted in another country. The international availability of accessible content created in one country should not be restricted because different exceptions apply in different countries. This is even more so because the amount of adequately formatted material is limited. Important was also the observation that there is no homogenous group of disabled people and that each group would need its own specific set of exceptions in order to be able to benefit from access to knowledge. The representative of the World Blind Union emphasized that the different groups of disabled people have a strong interest in stimulating large commercial production of readable copies and are therefore interested in active cooperation with publishers and in finding ways to reconcile the interests of all parties.

Access to knowledge and digital rights management
Article 3-6 of the draft Treaty is specifically directed at Digital Rights Management (DRM) and Technological Protection Measures (TPM) that are designed to restrict electronic access to knowledge. In its first part, the proposed article points towards the risks of DRMs and/or TPMs for the application of exceptions and limitations to exclusive rights, access to knowledge for the visually impaired or other people with disabilities, consumers, competitors and archives. The provision warns that unfair contract terms, the so-called business rules that are enforced through DRMs and the inadequate disclosure of limitations of uses of works can harm consumers. It, furthermore, calls attention to the danger of anti-competitive practices as a consequence of the use of DRMs or TPMs. Market segmentation and anti-competitive tying practices may result in higher prices and reduced innovation. The present wording of the draft provision acknowledges that DRMs are part of a larger problem that reaches into the realms of competition law and consumer protection. Having said that, several experts criticized that the provisions on consumer protection were still too narrow and required more elaboration, possibly in a separate article.

The goal of the second part of Article 3-6 is to ensure that the users of DRMs or TPMs respect prevailing public interest reasons in making knowledge accessible. The present concept of the second part of Article 3-6 of the Treaty to realize this objective is to say that legal prohibitions against anti-circumvention of DRM and TPM measures shall be restricted or not enforced in certain cases. Examples are a situation in which DRMs or TPMs preclude the implementation of Free and Open Software, in which the operators of such measures fail to inform consumers about their restriction modes and the terms under which they can be invoked or where DRM and TMPs are used to restrict access to public domain material. Insofar, national regulations should not prohibit the making available of technologies or services that facilitate circumvention for legitimate or authorized uses. One of the criticisms that were expressed regarding this proposal is that only few consumers will have sufficient confidence in their technical abilities to actually circumvent DRMs and TPMS. Another problem is communicating clearly and understandably to consumers when they would be entitled to do so.

Bottom line
As one participant worded it: "Our strength is diversity, our weakness is too much diversity". No doubt – the Access to Knowledge Treaty is an ambitious initiative that seeks to cover a whole range of areas. The resulting danger is to loose sight of the ultimate goal and to get caught in a multitude of different topics each of which might deserve to be subject of an initiative of its own. But this is just one reason more to remember the strength of the A2K initiative: this is the ability of its initiators to mobilize a group of international experts from different disciplines and backgrounds that all share a common motive: being convinced that it is high time for some action to restore the often deplored imbalance between consumers and producers of electronic content. The composition of the round of experts that came together in London enabled the scrutinization of this first proposal from many different perspectives and its exposure to constructive criticism from different disciplines and areas of expertise.

The present content page of the draft reads like the wish list of someone who has missed out the last three year's Christmas. It gives a good impression of the range of issues that have been, on the one hand, caused and, on the other hand, ignored by recent legal, economic and technological developments in the IP field. It is now for the drafting committee(s) to extract from this pool of ideas the most relevant ones and to expose them to further discussion. For the time being, the participants in the second A2K meeting left London exhausted but with the distinct feeling of having taken yet another step in the right direction.

Sources

About the author: Natali Helberger is senior project researcher at the Institute for Information Law, University of Amsterdam. She specialises in the regulation of converging media- and communications markets, electronic control of access to information and the interface between technique, media and intellectual property law. Contact: + 31 20 525 3646, helberge@jur.uva.nl

Status: first posted 30/05/05; included in INDICARE Monitor Vol. 2, No. 3, 30 May 2005; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=102